The Full Weight Of Government Prosecution

I probably should apologise for seeming a little unsympathetic at the news about the suicide of Aaron Swartz last week. But, really, why should I be the one to apologise. When Kurt Cobain killed himself, I was also unsympathetic. Here’s a guy who a lot of people idolized, and he just sent a crap message. As for Aaron, I hadn’t really heard of him before the news of his suicide, but the news came from someone in the tech circles, and I had heard of this Lessig fellow, also through the same source.

In reading about the various aspects of the events leading to the suicide, the one thing I felt I might have in common with Swartz is knowing how profound and traumatic facing an aggressive prosecution can be. Who knows if Swartz would’ve listened to a nobody like me, but it appears he listened to Mr. Lessig quite a bit over the last 10-12 years.

If I’m not mistaken, Mr. Lessig is something of an online political activist for progressive causes. I apologise for writing this without reviewing what he’s written in the years since I last heard of him, so I may have this all wrong. But what his two blog posts about Swartz’s suicide reveal is a deep bitterness toward the prosecutors who did what prosecutors every where do: They applied the most heinous charges they could, knowing that something would likely stick, and giving themselves leverage for plea-bargaining. I don’t know much about Mr. Lessig’s life before becoming a Law professor and online activist, but he must know that is how courts operate. He’s right to be bitter, but he’s wrong to single out the prosecutor’s in his friend’s case.

It appears to me that what progressives want is an expansive role of government in individual’s everyday life. When that government then turns on a friend, Lessig says, “the prosecutors don’t deserve the power of the government behind them”. Lessig firmly seems to believe in the power of the government to wield it’s full weight on other faceless individuals, but not to the powerful people in his circle. What I would hope progressives would learn from this is “the government shouldn’t have that kind of power to begin with”. If it wasn’t the prosecutors in his friend’s case, it would’ve been some other prosecutors. The point is, any individual in a position of power might be tempted to abuse it, and the only solution is to limit the government-backed power of any individual.

Lessig is a well-known and influential person. He may well get his distorted sense of justice and see powerful government-backed people fire the powerful government-backed prosecutors. They may even pass an Aaron’s law designed to limit prosecutorial discretion. But I’m doubtful it will do much to change the fundamental nature of putting too much power in the hands of people, who by nature, and history bears this out, have a tendency to occasional abuse.

I’ll add some notes and links later, I just wanted to jot this down to get it off my chest, as it’s made several iterations as I’ve thought it over.

Orin Kerr has a pretty good analysis of the legal aspects of the Swartz case, which I suppose is at the root of this, if not the exact subject of.


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